Trial Court’s ‘Factual Error’ Does Not Negate Its ‘Entire’ Best-Interests Decision

The trial court properly held that it was in the minor-child’s best interests to terminate the respondent-father’s parental rights, even though it “clearly erred” in finding that the child had a “lack of extended family support,” the Michigan Court of Appeals has ruled.

In the case of In re L.L. Gentry, Minor (Docket No. 376583), the Macomb County Circuit Court terminated the respondent’s parental rights to his minor child, LG, pursuant to MCL 712A.19b(3)(h), (j) and (k). The respondent appealed, challenging only the finding that termination was in LG’s best interests.

The Court of Appeals affirmed in a 2-1 published and binding opinion.

“On appeal, [the] respondent argues that the trial court clearly erred by finding that LG has a ‘lack of extended family support,’” the Court of Appeals majority said. “We agree. … That factual error does not, however, render the trial court’s entire best-interests decision clearly erroneous.”

Moreover, “[w]e agree that the trial court was required to explicitly consider LG’s relative placement, but disagree that the trial court failed to do so,” the Court of Appeals stated. “Here, the trial court repeatedly recognized that LG was placed with his mother. … In addition to explicitly considering – at length – LG’s placement with his mother, the court also explicitly found that termination of respondent’s parental rights was in LG’s best interests. In light of this record, we conclude that the court’s findings were adequate to facilitate appellate review.”

Judge Michael J. Kelly authored the majority opinion, joined by Judge Christopher M. Trebilcock.

Judge Allie Greenleaf Maldonado issued a separate dissenting opinion. “I would vacate the trial court’s finding that it was in LG’s best interests to terminate respondent’s parental rights and remand this case for the trial court to consider LG’s relative placement on the record and weigh that placement against termination,” she said.

Background

In 2023, after the respondent was arrested on charges of child pornography, the Department of Health and Human Services (the DHHS) asked the Macomb County trial court to authorize a petition it had filed, take jurisdiction over LG and terminate the respondent’s parental rights. That petition was dismissed several years later because DHHS witnesses were “unavailable.” After the petition was dismissed, LG’s mother began letting LG speak with the respondent on the telephone.

The DHHS later filed a second petition, again seeking termination of the respondent’s parental rights. The trial court authorized the new petition, denied the respondent’s request to continue speaking with LG over the telephone and suspended the respondent’s parenting time. The respondent’s mother testified that LG, who was 5 years old at the time, was “confused” and did not understand why he could no longer speak with the respondent on the telephone. In the meantime, because of his age, LG was not told the respondent was incarcerated for sexual exploitation of a minor and that his half-siblings were the respondent’s victims.

At a pretrial hearing, the respondent asked that the case be dismissed, asserting that he would be incarcerated in federal prison until after LG reached the age of majority. The trial court denied this request. The trial court also denied a request from LG’s mother that the respondent be able to speak on the telephone with LG. Instead, the trial court continued its order suspending the respondent’s parenting time.

In June 2025, the respondent again asked the trial court to dismiss the petition. The respondent’s attorney indicated the respondent had pleaded guilty to sexual exploitation of a child in the federal criminal case, had been sentenced to 40 years of imprisonment and that LG would be “well into his forties, probably into his fifties” when the respondent would be released. As a result, the attorney argued that his client would pose no risk of harm to LG. The trial court denied the motion, noting “there was always a chance” the respondent could have his sentence reduced.

The respondent subsequently entered a no-contest plea to the allegations in the DHHS petition. The petition had been amended to include allegations that the respondent 1) sent a photograph of his 8-year-old daughter to an undercover FBI agent, 2) captured images of his stepchildren (LG’s half-siblings) via a hidden camera inside the bathroom of their family home and 3) was arrested and charged with sexual exploitation of a child and distribution of child pornography. Upon accepting the respondent’s plea, the trial court found there were statutory grounds to exercise jurisdiction and entered an order taking jurisdiction over LG.

The respondent had stipulated that statutory grounds for termination existed because of his criminal conviction. Based upon that stipulation, the trial court held there were statutory grounds to terminate the respondent’s parental rights under MCL 712A.19b(3)(h), (j) and (k). After hearing testimony, the trial court ruled that termination of the respondent’s parental rights was in LG’s best interests, and entered an order to that effect.

The respondent appealed.

Best-Interests Analysis

On appeal, the respondent argued the trial court clearly erred by finding that termination of his parental rights was in LG’s best interests.

The respondent claimed the trial court “clearly erred by finding that LG has a ‘lack of extended family support,’” the Court of Appeals majority noted. “We agree. … In light of [the] testimony [presented], we are left with a definite and firm conviction that the trial court clearly erred by finding that there was no extended family support.”

However, this “factual error” did not render the trial court’s entire best-interests analysis clearly erroneous, the Court of Appeals said.

Here, the respondent focused on “the bond between himself and LG,” and argued that LG was not “traumatized” by having phone contact with him and “wants to have contact with him,” the Court of Appeals noted, acknowledging “there was certainly testimony that supported the existence of a bond” between the respondent and LG. “Nevertheless,” the appeals court said, “the fact that there is a bond between a parent and a child is not dispositive of the child’s best interests. Rather, it is only one factor that a trial court may consider when evaluating a child’s best interests.” Further, the fact that “’[p]lacement with a relative weighs against termination’ is not dispositive because a ‘trial court may terminate parental rights in lieu of placement with relatives if it finds that termination is in the child’s best interests.’”

In this case, the respondent argued the trial court “failed to consider that LG was safe and stable in his mother’s care,” the Court of Appeals said. “LG’s mother is a relative, … so the court was required to explicitly consider his placement with her when making its best-interests determination. We agree that the trial court was required to explicitly consider LG’s relative placement, but disagree that the trial court failed to do so.”

Although a trial court must “explicitly address” a child’s relative placement, “its underlying reasoning need not be so specific,” the Court of Appeals said, citing In re Olive/Metts, Minors, 297 Mich App 35 (2012). Here, “the trial court repeatedly recognized that LG was placed with his mother. It found that LG had ‘lived continuously with his mother and siblings since his birth, that the permanency plan was for LG to continue in his mother’s custody,’ that he had ‘remained in the same home,’ that it was essential to continue his placement ‘in the only environment’ that he had thrived in, that his ‘household’ was providing him with a ‘protective environment free from exploitation.’”

As well as “explicitly considering – at length – LG’s placement with his mother, the [trial] court also explicitly found that termination of respondent’s parental rights was in LG’s best interests,” the Court of Appeals explained. “In light of this record, we conclude that the [trial] court’s findings were adequate to facilitate appellate review. Moreover, our review of the issue would not be facilitated by a more detailed statement by the trial court indicating that it had considered LG’s placement with his mother as a relative placement when it found that termination of respondent’s parental rights was in LG’s best interests.”

The Court of Appeals continued by rejecting the respondent’s argument that the trial court did not properly consider his parenting ability. “The trial court found that respondent was not morally fit as a parent. In doing so, the [trial] court remarked, ‘[a] parent who has committed a sexual offense against a minor in his own family demonstrates [a] profound breach of trust and safety.’ … Considering the nature and extent of respondent’s sexual exploitation of LG’s siblings, the trial court did not clearly err by finding respondent’s parenting ability was lacking.”

Meanwhile, the respondent further maintained that a trial court “must” look at a parent’s ability to “benefit” from a service plan, the Court of Appeals said. “In support of that assertion, he directs this Court to In re White, 303 Mich App [701 (2014)]. That case, however, does not provide that a court is mandated to consider a parent’s ability to benefit from a service plan; it only states that a court ‘may consider’ a ‘parent’s compliance with his or her case service plan.’ … [T]he mere fact that respondent was willing to participate in services does not render the trial court’s best-interest findings clearly erroneous.”

Next, the Court of Appeals rejected the respondent’s argument that the trial court erroneously found that termination was in LG’s best interests because LG was “safe and stable” with his mother. “He contends that the trial court did not address that aspect of the case. As stated [previously], however, the [trial] court considered LG’s placement with his mother, so there is no error in that regard.” The appeals court also pointed to testimony that LG was “confused” and was “being told disingenuous things,” such as the respondent was coming home “in a little while. … The [trial] court’s findings that LG needed to be protected from emotional harm, therefore, is not clearly erroneous.”

Lastly, the respondent argued the trial court improperly emphasized that termination of his parental rights would lead to permanency, stability and safety for LG. “We disagree,” the Court of Appeals said. “LG was five years old at the time of termination. Respondent had been arrested when he was three years old and his parenting time was suspended.”

Accordingly, “[h]aving reviewed the entire record, we do not find the [trial] court’s findings clearly erroneous,” the Court of Appeals concluded. “The testimony established that LG was thriving in his mother’s care, that he was getting ready to start kindergarten, that he was confused by the inconsistent phone contact with respondent, that the consistency of future contact was not guaranteed, that respondent posed a psychological risk to LG given his conviction for sexually exploiting LG’s half-siblings, that LG had only ever known one home, and that respondent’s 40-year incarceration would preclude any reunification until long after LG reaches 18 years of age. Based upon the foregoing, we conclude that the trial court’s finding that it was in LG’s best interests to terminate respondent’s parental rights was not clearly erroneous.”

Dissent: Factual Record ‘Inadequate’

“Unfortunately, there is not yet consensus regarding what it means to consider relative placement and weigh it against termination,” Judge Maldonado wrote in her dissent. “Some panels have determined that it is sufficient that the record supports the trial court was aware of the relative placement and nevertheless determined that termination was in the child’s best interests. … Other panels have concluded that it is not enough for a trial court to be aware of relative placement; the court must expressly consider that factor and weigh it against termination on the record.”

The Michigan Supreme Court “recently signaled that the latter approach is preferred” in its order in In re JMG/JGG/JMG, Minors, ____ Mich ____ (2025), the judge pointed out. She noted that, in that case, the Court of Appeals (Docket No. 368147) said the trial court “did review whether termination was suitable given the minor children’s placement with their father’ and ‘[a]fter its review, the trial court found termination to be appropriate.’ Accordingly, the panel concluded that the trial court made no discernible errors in its best-interests analysis. … The Supreme Court vacated the portion of the judgment of the Court of Appeals addressing the best-interests determinations for all three children and remanded the matter to the trial court with instructions that ‘the trial court shall make an individualized best-interests determination as to each child, while recognizing that relative placement weighs in the respondent-mother’s favor.’ … I interpret this order as an indication from the Supreme Court that acknowledging that a child is living with a relative is not equivalent to expressly considering relative placement and, perhaps more importantly, expressly weighing that placement against termination clearly and on the record.” (For details on the MSC order in In re JMG/JGG/JMG, Minors, see the Speaker Law Blog.)

According to Judge Maldonado, “on this point” the present case is “similar to” In re JMG/JGG/JMG, Minors. “Here, when assessing whether termination was in LG’s best interests, the trial court repeatedly acknowledged that LG was living with his mother. In the context of discussing respondent’s capacity to provide medical care and other material needs, … the trial court found that LG had always ‘remained in the same home,’ which the trial court knew was LG’s mother’s house. And with regard to the stability of LG’s environment, … the trial court found that LG ‘ha[d] lived continuously with his mother and siblings since birth.’ Likewise, when assessing the parents’ moral fitness, … the trial court found that the mother’s ‘household’ was an ‘environment free from exploitation.’”

The judge further noted that, like the trial court in In re JMG/JGG/JMG, “the trial court in this case referenced that LG lived with his mother, but did not expressly consider relative placement or expressly recognize that such placement weighed against” terminating the respondent’s parental rights.

“I agree with my colleagues in the majority that the trial court’s findings need not be extensive, and that ‘[b]rief, definite, and pertinent findings and conclusions on contested matters are sufficient,’” Judge Maldonado said. “However, I disagree that discussing that a child is living with a relative – in the context of discussing other best-interest factors – constitutes ‘explicit’ consideration of relative placement and its weight against termination, … or a ‘definite’ finding regarding the child’s best interest in light of relative placement ….”

Therefore, “despite the trial court’s general acknowledgement that LG was living with his mother, the factual record is ‘inadequate to make a best-interest determination and requires reversal,’” Judge Maldonado concluded. “Consequently, I would vacate the trial court’s best-interest determination and remand for further consideration of LG’s best interests in light of his relative placement.”